TOS’ing My Hat In The Ring

(Warning! This post violates my own self-imposed rule of no profanity. I use profanity this time around and I’m not going to edit it to remove that language either. If you are offended by profanity then please do not read this post. You have been warned!)

No doubt you’ve heard a lot about the recent change Linden Lab made in their Terms of Service (ToS). If you haven’t heard yet then you need to have a seat and get ready to be educated .. and shocked. But really, before I dig into the rotten fetid meat of the issue, I want to tell you about something I’ve done to ease my mind lately.

An Open Dance Place

Some time back I had to close the Main Store for DGP4SL. Some of the stuff that I picked up from that parcel included an Intan Dance Machine loaded with non-copyable and non-transferable couples dances. Rather than let it sit useless in my Inventory, I set it out on the Teleporter store Sim. Then I went to the beachfront parcel and built a dance deck (using Library textures and basic prim parts). So now there’s a wide expanse of deck with an open Intan loaded with really nice couples dances (nothing racy or suggestive) and the media channel is set to something fairly innocuous. In the next few days I’m going to set up a media controller so folks can select the music they want. But for right now, it’s a place to come and unwind, think about stuff OTHER than the crap LL is pulling .. and just relax with your favorite someone.

Terms of Theft

There really is no other way to describe the latest move executed by Linden Lab. What they have done is nothing short of an attempt at legalized theft. There are a lot of different opinions on the issue, some of which even suggest that LL’s move is purely innocuous and necessary for them to operate Second Life. But sadly the folks holding those opinions are either woefully under-educated, paid shills .. or just plain fucked in the head. (And I’m mostly betting on #2.)

The section that has received the most attention is Section 2.3 – You grant Linden Lab certain licenses to your User Content. I’ll be referencing specific language within that section so I recommend you keep the ToS open in another window (if you wish to read the full text rather than the abridged version I quote).

Your First Responsibility Is To Give Up Your Rights

The second paragraph of Section 2.3 states (in part):

“In connection with Content you upload, publish, or submit to any part of the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions …”

This paragraph says that you guarantee Linden Lab that you have all the necessary rights to the stuff you upload so that they can use that content in any way they desire. That means that if they want to turn your upload into an overnight money machine and then someone comes along and says “Hey wait! I own that and you can’t have it” then it’s YOUR fault and Linden Lab is blameless.

Stop and think about that for a moment. What Linden Lab has done is throw you under the bus. If they take your uploaded content and do something with it, and then later that comes back to bite them, that paragraph says that you accept full responsibility for the whole debacle. This serves two purposes .. from a legal standpoint.

Who Gets Sued And Why

The first purpose is to absolutely and with no confusion define who is the responsible party in any dispute. The language in paragraph 2 states very clearly that it’s you and not Linden Lab. So if there are any legal disputes over any content uploaded to Second Life, the only one that CAN be sued is you.

The second purpose is to help deflect lawsuits. Not only does it make it very unprofitable to sue over ownership rights (because it’s you, the piss-poor individual creator and uploader and not the cash rich Linden Lab) but it also means that trying to pierce that language is going to be a lot more expensive in terms of lawyer time and billing, so any possible complainant must have a damn good (and profitable) case before they will attempt to sue. In this respect, the language serves to provide you a tiny bit of protection, but very very little.

The Bullshit First Paragraph

Those of you asking “But Darrius, what about paragraph 1?” Allow me to dispense with that question now. It’s all bullshit. It’s there to make sure paragraph 2 has teeth, and it’s there to lull you into feeling secure. Otherwise it’s of no use to you whatsoever.

Bend Over for Paragraph Four

Paragraph 4 is where they really start to stick it to you. It says:

“Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration or remuneration for any of the rights granted in this Section.”

That means that no matter what they do with your uploaded content, you not only waive forever the right to make any money from it, but you further waive any right to say what can be done with and to it. So if they take your content, turn it into something horribly repugnant to you and then sell it for scads of money .. you don’t get squat and you don’t get to even say “Boo!” about it. You are screwed, and you agreed to be screwed from the get-go.

Paragraph Five – The Doom Hammer

Paragraph 5 is where they drop the Doom Hammer on your head. Any time you see a clause or paragraph in a contract that has that many commas and that many specific individual items of description then you know full well that’s the paragraph that is gonna hurt the most should push come to shove. Seriously! Look at this phrase from paragraph 5:

Look at all those commas! Look at all those specific detailed items! They seriously want to make sure every possible contingency is covered just in case you or someone else decides to come after them in a court of law. And in case that does happen, rewind to paragraph 2.

Paragraph Six – The Death Blow

The final paragraph in Section 2.3 is the one that delivers the coup de grace (like it’s really needed). It says in part:

In short that means that if they decide to sue someone or take legal action for any reason, and that reason happens to include something you uploaded and they subsequently confiscated, that you agree to join forces with them AND give them all the legal help they need BUT accept nothing in return in the way of remuneration or compensation. In short, you have to help them win, but you don’t get even a tickle in the fun parts for it. Blah!

Okay, Legalese To Death – WTF?

Now that you’ve been legalesed to death, what does it all mean to you, the tiny independent Creator?

First of all it’s important to remember that the ToS was not written (nor has it ever been written) to protect you. It has always been solely for the purpose of covering Linden Lab’s backside. The fact that it has changed in such a drastic way is sure and clear evidence of their intent to make some changes in how they do business. Despite any exhortations to the contrary, they have a clear intention of taking user uploaded content and selling it in any way they can.

But you’re just a tiny Creator. Surely Linden Lab wouldn’t want to screw you over, right? Remember that the ToS is to protect them and not you. Even if you are not a big name, or you haven’t uploaded really neat stuff, remember that there are others that HAVE uploaded some absolutely incredible things. Travel around Second Life some and you’ll see what I mean. There are creations and builds out there that are flat out amazing! And Linden Lab wants to lay their mitts on them too. The new ToS gives them full right and license to do exactly that .. and more.

Will Burns’ Really Good Idea

Will Burns has reportedly suggested that LL intends to offer some of the better 3D content from Second Life to the Independent Game Developers populating their Desura distribution site. I happen to think he’s right on the money here. But even if that’s not the entire outlet they intend, it is a very likely and viable outlet for them to exploit.

So what recourse do you have if you find your uploaded content suddenly appearing in the next big name game? Nada. Remember you gave up those rights when you agreed to the ToS. When you logged in to your SL Viewer and blindly hit “Accept” on the new ToS, you gave up all rights you ever had.

But What If ..?

So what if you don’t agree to the new terms? What if you have no desire to give your stuff to Linden Lab for free? What can you do? There are a number of things you can do to protect yourself. First and foremost though, one piece of advice I have is:

GET YOURSELF A LAWYER!

I’m not a lawyer. I never profess to be one. I can’t offer legal advice in any shape or form. I can offer advice that makes sense to me and a lot of other folks. But when it comes to legal protection, hiring a lawyer of your own is your only recourse of worth.

From what I can determine, the new ToS covers only those items which are uploaded or modified after you accepted the new ToS. So your first line of defense is to stop uploading, editing or modifying your creations. Don’t let Linden Lab have modification or upload dates that are after the new ToS was accepted by you. Remember that once the date on their Server shows that you modified or created it after the date you accepted the ToS .. THEY OWN IT!

What I Am Doing

Since the new ToS was released, I have stopped uploading new creations. I have edited one script to fix a problem in one of my Teleporters, but because it is a script in LSL and pertains only to Second Life, I feel fairly confident that it’s “Safe” from being purloined by LL. (The Teleporter won’t even work in some of the SL-alikes such as InWorldz or the OpenSim Virtual Worlds without some serious modifications.)

I have joined the informal “No More Uploads” group in Second Life. There is no formal group created; it’s just a bunch of us Creators that refuse to give our hard work to Linden Lab to exploit.

Final Thoughts

Just like the email spammers can count on at least 0.1% of the email they send out resulting in some idiot replying with their bank account information, Linden Lab can count on some small percentage of the really good Content Creators in Second Life giving them full right, license and title to some really fabulous stuff. They’ll do so most likely not realizing what they’ve done, but some will do it willingly.

We can help stop it though by contacting all the Content Creators we know and telling them what’s what. Let them make up their own minds. But let them know what they’re getting into at least.

The saddest part of all? Linden Lab could have contacted the Content Creators in SL and said “Hey! We have this neat idea to make you and us some good money. Wanna join up and possibly make some extra income?” Then we would have ALL been on board and things would have sailed smoothly. Instead? They’ve gotta shaft us, fuck us and basically grab for all the golden rings while making us look like idiots.

Well, I for one am tired of their games. So my only response is:

FUCK YOU LINDEN LAB!

Other Links

Here are a few links to other reading that may interest you. This is not all! But some of them do have other links worth following.